"Graduated response" laws continue their world tour. Next up: New Zealand, …

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"It is a strange fate we should suffer so much fear and doubt over so small a thing," says Boromir in the recent movie adaptation of the Lord of the Rings. The scene, shot in New Zealand, might pop into the minds of many Kiwis these days, as one tiny legislative change to copyright law is poised to bring "graduated response" (or "three strikes") rules to the country. And disconnection of users isn't just on the table—it's mandatory.

New Zealand's 1984 Copyright Act was last year amended in numerous ways, but the most controversial has certainly been new section 92A. "An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer," it says, and if that seems more than a trifle vague, you'll understand why ISPs are practically up in arms about it.

The bill gives no real guidance on what "appropriate circumstances" are, so ISPs are trying to hash out some sort of voluntary agreement with the local film industry. But because the law has already been passed and its February 28 implementation date is approaching, rightsholders are apparently being quite tough in negotiations. Things have grown contentious enough that the ISPs are now calling for a delay in implementing the law.

An ISP representative complained last year that "identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a school."

New Zealand Computer Society boss Paul Matthews questioned the reasoning behind the law. "You could use the same flawed justification that underpins this law to force The Warehouse to ban someone from shopping there for their food and clothes just because they are accused of copying a few DVDs that they have bought," he said. "Yes, copyright infringement is wrong, but it needs to be proven first and the penalty kept in proportion. Termination of all internet access in this day and age of online education, social networking and electronic services is a huge penalty."

And librarians worry that the vague wording will expose them to tremendous difficulties. A New Zealand library association complained this week that "an Internet service provider must terminate the account of a repeat infringer. This draconian provision would seem to mean that, if a user is found on more than one occasion to have illegally accessed or downloaded copyright materials, or otherwise breached copyright in a work, the ISP must terminate the Internet access not of the individual accused of breaching copyright, but of the account holder—that is, of the entire library."

New Zealand's creative industries, which generally welcome the law, say that "there should be no termination of the accounts of responsible businesses and organisations such as hospitals and schools as they will have responded to the first warning and prevented further infringement taking place." It's tough to see how a 200 person company or a public library could stop any three of its users from ever violating copyright using the Internet, however; better policies around this will clearly have to be worked out, as businesses who get cut off when a few interns download the latest pop single will be apoplectic.

The music and movie industries insist that graduated response is "not about ISPs policing the internet, it's about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders. More than anything it is about educating users."

ISPs, much as they might not like the law, have a more specific business concern: the law does not appear to grant them legal protection even from rightsholders or end users. Content owners unsatisfied with ISP action could still sue the companies, alleging that they have not fulfilled their 92a responsibilities. Customers who are disconnected, especially in cases where mistakes are made, could potentially file suits of their own against ISPs. According to some IT folks who met with government ministers last year about the change, the government is aware of the issue but the message to ISPs was clear: "deal with it."

While tough sanctions like disconnection have been condemned by the European Parliament and avoided by the UK, France still hopes to implement them under its own graduated response regime. Irish ISP Eircom voluntarily agreed to such a plan after being sued, and New Zealand will try the idea out on a national basis. With milder versions of the plan coming to countries like the UK and the US, there's certainly something to the music industry argument that graduated response proposals are sweeping the globe.